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Florida Second DCA reverses trial court's dismissal of medical negligence plaintiff's complaint for failure to state a cause of action alleging vicarious liability

On February 16, 2018, in Payas v. Adventist Health System/Sunbelt Inc., No. 2D16-3615, the Florida Second DCA reversed the trial court’s dismissal of the plaintiff’s medical negligence complaint Florida Hospital d/b/a Celebration Health. The plaintiff is the personal representative of the estate of a patient who had undergone hernia repair surgery at Celebration Health. The complaint alleged that during the surgery part of the surgical robot detached and became imbedded in the patient’s esophagus, causing him subsequent complications and injuries. The plaintiff alleged in separate counts that Celebration Health (i) breached a nondelegable duty, (ii) negligently maintained and operated the surgical robot, (iii) was vicariously liable for the surgeon’s negligence because he was an employee, agent or apparent agent of Celebration Health, and (iv) also was vicariously liable for the surgical staff’s negligence. The trial court dismissed the complaint on the grounds that counts against Celebration Health contained “co-mingling of allegations” and the allegations were “still too vague.”

On appeal, the Second DCA noted that under Fla. R. Civ. P. 1.110(b)(2) a complaint must merely contain a sort and plain statement of the ultimate fact showing that the pleader is entitled to relief. The Court also noted that whether a hospital is liable for the negligent acts of a physician depends on whether the physician is an independent contractor and whether the physician is acting as an agent of the hospital, citing Godwin v. Univ. of S. Fla. Bd. of Trs., 203 So. 3d 924, 929 (Fla. 2d DCA 2016), review denied, SC16-2107, 2017 WL 1034486 (Fla. Mar. 17, 2017) ("[A] hospital that retains an independent contractor to provide medical services may still be liable for the negligence of the independent contractor if the hospital cloaked her with apparent authority to act on its behalf”) See also Webb v. Priest, 413 So. 2d 43, 47 n.2 (Fla. 3d DCA 1982). The Court further cited Kristensen-Kepler v. Cooney, 39 So. 3d 518, 520 (Fla. 4th DCA 2010) ("where it can be shown that a hospital, by its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being rendered [on] behalf of the hospital, then the hospital will be liable for the physician's negligence”) (quoting Stone v. Palms W. Hosp., 941 So. 2d 514, 520 (Fla. 4th DCA 2006)). The Court noted that the plaintiff had alternatively pled that the surgeon was an apparent agent of the hospital, which requires a showing that (1) the defendant made a representation to the patient; (2) the patient relied on the representation; and (3) the patient changed his position as a result of that reliance). Regarding Count I of the Complaint, which alleged that the hospital breached a nondelegable duty to maintain the surgical robot, the Second DCA noted that such a duty may arise out of a state, regulation, contract or common law, and under common law such duties typically arise out of the performance of ultra-hazardous activities.